Citation Nr: 1511359
Decision Date: 03/17/15 Archive Date: 03/27/15
DOCKET NO. 11-31 638 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUE
Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and W.A.D.
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The Veteran served on active duty from May 1968 to April 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to SMC based on the need for aid and attendance or at the housebound rate.
In November 2014, the Veteran and his friend testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the Veteran's Virtual VA electronic file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part.
REMAND
The Veteran asserts that SMC based on the need for aid and attendance or at the housebound rate is warranted. He maintains that his service-connected disabilities of coronary artery disease, status post coronary artery bypass graft, tinnitus, and hearing loss require him to need an aide for his activities of daily living. Although he is a double amputee, he maintains that this need is based on his service-connected disabilities, and not on his non service-connected disabilities. He and his friend testified that he needs assistance with cooking, dressing, medication management, and paying his bills.
A review of the record reveals that the Veteran underwent a VA aid and attendance/housebound examination in June 2009. During the examination, the Veteran was determined to be unclean and malnourished. He was noted to have difficulty feeding himself and manipulating buttons on a shirt. The examiner stated that he required the daily personal health care of a skilled provider without which he would require hospitalization, nursing home, or other institutional care. Unfortunately, this examination was inadequate as it was not clear if this need was due to the Veteran's service-connected disabilities or as a result of his non service-connected tremors to his upper extremities and double above the knee amputations.
In connection with a November 2010 VA cardiology examination, the examiner stated that the Veteran was able to get up and dress and feed himself. The examiner did, however, indicate the Veteran needed some assistance with activities of daily living, but did not explain which activities required assistance.
The Veteran testified at a videoconference hearing in November 2014. He stated that his service-connected coronary artery disease kept him fatigued and unable to care for himself. He related that he was housebound and was not able to leave his home alone.
Since the evidence of record is conflicting and it is not clear whether the Veteran's infirmities that limit him and may require SMC are based on his service-connected or non service-connected disabilities, another VA aid and attendance examination is necessary in order to make a determination in this claim. Because entitlement to this benefit cannot be established or confirmed without a current VA examination, and the last aid and attendance examination has been more than 5 years ago, the Veteran should be scheduled for a VA examination in this regard.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated. The Veteran should be asked to provide consent for VA to obtain private medical records, if any.
2. Following completion of the above, schedule the appellant for a VA SMC aid and attendance/housebound examination to determine whether the Veteran is in need of aid and attendance or whether he is housebound. All indicated studies should be performed.
In particular, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran is in need of aid and attendance from another individual. The criteria in the applicable regulations should be used, including a determination whether the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; inability to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers to daily environment.
The examiner should also address whether it is at least as likely as not (50 percent or greater probability) that the Veteran is permanently housebound by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises on account of disability and it is certain that the disability or disabilities and resultant confinement will continue throughout his lifetime.
The examiner should provide supporting rationale for any opinion reached. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
It is important to note that the examiner should only ascertain if the Veteran meets the medical criteria for aid and attendance or is housebound based on his service-connected disabilities alone. His nonservice-connected disabilities cannot be considered in this regard.
3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated. If the determination remains unfavorable to the Veteran, he and his accredited representative should then be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate review, if in order.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
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action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).